Смертна кара під час воєнного стану як засіб публічної превенції

The article examines the death penalty as a type of criminal punishment based on the analysis of the famous treatise «On Crimes and Punishments» by the 18th-century Italian thinker Cesare Beccaria. The grounds for the admissibility and necessity of the death penalty in situations critical to the existence of statehood are determined, taking into account the opinions of domestic legal scholars. In particular, a state may provide in its legislation for the death penalty for acts committed during war or an imminent threat of war. It is noted that the ideas of Cesare Beccaria have significantly influenced modern international law. This legislation provides for the obligation of the member states of the Council of Europe that have signed the Convention for the Protection of Human Rights and Fundamental Freedoms and its additional Protocols to abolish the death penalty in all circumstances. Ukraine signed and ratified the above international legal acts, following the path of European countries. This was done due to the fact that no one in Ukrainian society foresaw the possibility of armed aggression (war) in Europe in the 21st century. The article analyzes the above international legal acts and concludes that Ukraine has fallen into the same trap as with the Budapest Memorandum of 1994. It is argued that a certain analogy can be drawn between the death penalty and nuclear weapons – both of them are means of deterring (preventing) the commission of particularly serious crimes associated with the mass death of people. The study concludes that as a result of the large-scale Russian aggression, an exceptionally dangerous situation has developed for Ukraine. This is an existential threat to the existence of a sovereign state and the Ukrainian ethnic group, which requires a review of international obligations regarding the death penalty. The opinion is expressed and substantiated that the existence of this institution during martial law will in itself effectively influence the feelings of citizens - carriers of racism, prone to betrayal and collaboration with the aggressor and occupier. This is, first of all, about the criminal activity of individual citizens of Ukraine, which is associated with the death of military and civilian people and other serious consequences (missile guidance, transmission of information about the location of military units, weapons, ammunition, fuel depots, energy facilities, etc.). The current legislation provides for life imprisonment for such actions. It seems quite justified and necessary to use the formula “punishable by life imprisonment or the death penalty” for such crimes. Of course, we are talking about the application of such punishment only during martial law (state of war).